PRINCIPLES OF ORDER 7 RULE 10 AND 10 A CPC AND DE NOVO TRIAL

 

Principles of Order 7 Rule 10 and 10 A CPC and de novo trial

Once a suit is preferred before a civil court, the same shall have to be in consonance with Order IV, VI & VII of The Code of Civil Procedure. If the suit is found in order, notice is issued to the defendants for settlement of issues. The defendants, in the event of contest are required to file written statement within stipulated time or as prescribed by the courts. After pleadings are complete, issues are framed and the suit is to be posted for evidence and trial proceeding begins. However, the defendants upon entering appearance may raise the issue of lack of territorial or pecuniary jurisdiction of court and if it is found that the concerned court does not have territorial or pecuniary jurisdiction, the plaint is liable to returned by the said court under Order VII Rule 10 read with A of CPC. The plaint may be returned upon adjudication of application preferred by any of the parties or the court may decide on it suo moto. However, there remained ambiguity, as regards, whether the plaint so returned, to be filed before appropriate courts of jurisdiction shall take up the case from the stage it was pending in the court or the case shall have to be started de novo. The answer to that is being craved for herein.

Order VII Rule 10-A, indicates its insertion by the Code of Civil Procedure (Amendment) Act, 1976 (with effect from 01.02.1977). The New Rule 10-A is being inserted to obviate the necessity of serving summonses on the defendants where the return of plaint is made after the appearance of the defendant in the suit.

The provisions as contained in Order VII Rule 10 and 10 A of CPC may be perused before adverting further.

Return of plaint (RULe 10)

(1)    Subject to the provisions of rule 10A, the plaint shall at any state of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation-
For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.

(2)    Procedure on returning plaint- On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

                          RULE 10 A

Power of court to fix a date of appearance in the court where plaint is to be filed in proper court after its return:-

 

(1)   Where in any suit, after the defendant has appeared, the court is of opinion that the plaint should be returned due to non-jurisdiction, it shall, before doing so, intimate its decision to the plaintiff.  

(2)   Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the court-

(a)   specifying the court in which he proposes to present the plaint after its return,

(b)    praying that the court may fix a date for the appearance of the parties in the said court, and

(c)   requesting that the notice of the date so fixed may be given to him and to the defendant.

(3) Where an application is presented by the plaintiff as aforesaid, the court shall, before returning the plaint and notwithstanding that the order for the return of plaint was made by it on the ground that it has no jurisdiction to try the suit :-

a) Fix the date for the appearance of the parties in the court in which the plaint is proposed to be presented, and

b)  Give to the plaintiff and to the defendant notice of such date for appearance. .

(4) Where the notice of the date for appearance is given under sub-rule (3)-

(a)  it shall not be necessary for the court in which the plaint is presented after its return, to serve the defendant with a summon for appearance in the suit, unless, the court, for reasons to be recorded, otherwise directs, and

(b) The said notice shall be deemed to be a summons for the appearance of the defendant in the court in which the plaint is presented on the date so fixed by the court by which the plaint is returned.

(5)  Where the application made by the plaintiff under sub-rule (2) is allowed by the court, the plaintiff shall not be entitled to appeal against the order returning the pliant.

 

In a recent judgment captioned as M/s EXL Careers & Another Vs Frankfinn Aviation Services Pvt Ltd Civil Appeal No. 2904 of 2020 arising out of SLP (Civil) No. 16893 of 2018 a Three (3) Judge bench of Supreme Court has dealt with the issue.  In fact, vide the aforesaid judgment, the hon’ble Supreme Court has settled the conflicting judgments of two judge benches of Supreme Court in decisions rendered in Joginder Tuli vs. S.L. Bhatia, (1997) 1 SCC 502 and Oil and Natural Gas Corporation Ltd. vs. Modern Construction & Co., (2014) 1 SCC 64 8.

The following questions of law is answered by the Three (3) Judge bench of Supreme Court:

“If a plaint is returned under Order VII Rule 10 and 10A of the Code of Civil Procedure 1908, (hereinafter called as “the Code”) for presentation in the court in which it should have been instituted, whether the suit shall proceed de novo or will it continue from the stage where it was pending before the court at the time of returning of the plaint?

It may be noted that the Rule 10 A of Code of Civil Procedure is only a sequitur with regard to the procedure to be followed for the same. It cannot be interpreted as providing for continuation of the suit. Significantly, under Order VII Rule 10- A fresh summons had to issue upon presentation of the plaint before the court of competent jurisdiction.

The following precedents are in support of de novo proceedings of the suit after return of plaint:

(i)           Ramdutt Ramkissen Dass vs. E.D. Sassoon & Co., AIR 1929 PC 103;

(ii)        Amar Chand Inani vs. The Union of India, (1973) 1 SCC 115;

(iii)       Harshad Chimanlal Modi (II) vs. DLF Universal Ltd., (2006) 1 SCC 364

(iv)        Hasham Abbas Sayyad vs. Usman Abbas Sayyad, (2007) 2 SCC 355

 

Conversely, it is also held in the following judgments that the proceedings shall not be de novo, but from the stage it is returned:

(i)          R.K. Roja vs. U.S. Rayudu, (2016) 14 SCC 275

(ii)          Oriental Insurance Company Ltd. vs. Tejparas Associates and Exports Pvt. Ltd., (2019) 9 SCC 435,

(iii)       Joginder Tuli vs. S.L. Bhatia, (1997) 1 SCC 502

 

In Joginder Tuli (supra) the original court had lost jurisdiction by reason of the amendment of the plaint and the Trial Court directed it to be returned for presentation before the District Court. The Supreme Court had observed as follows:

“5. … Normally, when the plaint is directed to be returned for presentation to the proper court perhaps it has to start from the beginning but in this case, since the evidence was already adduced by the parties, the matter was tried accordingly. The High Court had directed to proceed from that stage at which the suit stood transferred. We find no illegality in the order passed by the High Court warranting interference.”

 

The context of the order is therefore implicit in the above judgment. The directions was made in the peculiar facts of the case and in exercise of the discretionary jurisdiction under Article 136 of the Constitution. As there was no discussion of the law either and therefore, no precedential value could be attached to it.

In  Modern Construction (supra), referred to the consistent position in law by reference to Ramdutt Ramkissen Dass vs. E.D. Sassoon & Co., Amar Chand Inani vs. The Union of India, Hanamanthappa vs. Chandrashekharappa, (1997) 9 SCC 688, Harshad Chimanlal Modi (II) (supra) and after also noticing Joginder Tuli (supra), arrived at the conclusion as follows:

“17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.”

 

The Supreme Court in M/s EXL Careers  Supra) has held as under:

“21. The statutory scheme now becomes clear. In cases dealing with transfer of proceedings from a Court having jurisdiction to another Court, the discretion vested in the Court by Sections 24(2) and 25(3) either to retry the proceedings or proceed from the point at which such proceeding was transferred or withdrawn, is in marked contrast to the scheme under Order VII Rule 10 read with Rule 10-A where no such discretion is given and the proceeding has to commence de novo.”

        

                                                   -------

                                           Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com